Is there anything I can do if my school yearbook uses my Instagram photos without my permission?

First of all, bravo for recognizing that you could potentially have a copyright infringement claim! Unfortunately, you just don’t have a very strong one. Fair use is the main defense to copyright infringement, and we’ll explain exactly what it means in the next section. But first, it’s important to determine whether a copyright exists in the first place because if there is no copyright, then a fair use analysis would be completely irrelevant.

Copyrights give creators protection over literary and artistic expressions like books, movies, songs, and photographs. Owning a copyright gives a person certain rights such as the right to reproduce the work, perform the work, distribute copies of the work, display the work publicly, and create derivative copies of the work. For a creator to have a copyright, the artistic work must be fixed in a tangible medium (meaning it has to be in some physical form) and the work must be original. A lot of people think that you need to register your work with the U.S. Copyright Office to obtain a copyright, but that’s not actually true. As soon as you create some tangible, creative, and original work, you have a copyright. If you’re interested in learning how exactly to get a copyright, see our Q&A, “How do I get a copyright? Do I have to register with the U.S. Copyright Office?”

Spoiler alert: you likely have a copyright over the pictures that you take and post on Instagram because they’re fixed in a tangible medium (a digital photo) and they are an original image. Although it is usually true that social media websites also obtain some ownership rights over the photos that you upload, you still hold the copyright to your own pictures. This means that you own the copyright to the prom pictures you posted on Instagram. Because you own the copyright to your prom pictures and it appears as though the yearbook straight up copied those pictures, why are we saying that you probably don’t have a very good copyright infringement claim? You just have to keep reading to find out!

Okay, tell me. What is “fair use?”

The Fair Use Doctrine allows someone other than the creator to use the creator’s work for the limited purposes of criticizing, commenting, reporting, educating, researching, or creating scholarship. To determine whether the use of a copyrighted work by someone other than the owner, in this case the yearbook staff, will satisfy the Fair Use Doctrine, the court will look at four factors: (1) why and how the yearbook staff used the owner’s work, (2) how much protection does the owner’s work get, (3) how much of the work the yearbook used, and (4) what impact the yearbook’s work will have on the potential market of the owner’s work. The first factor is weighted more heavily than the others, and it is very likely that the party who wins the first factor will win the entire case.

While a true analysis of these four factors requires a detailed, complicated analysis, here is a very brief analysis of your situation:

Factor one: The first factor looks at the purpose and character of the original work compared to the second work and if the second work transformed that purpose and character. In other words, did the message and meaning change from the first work to the second work? Do you get a different feeling when you view or experience the first and second work? The more transformative the second work is, the more likely a court will find fair use and not copyright infringement. For example, pretend you see an image of something that looks like the Mona Lisa, but she’s holding a Starbucks cup and an iPhone. That image would not be copyright infringement because that second image is likely fair use partly because of the transformative nature of the second work. You probably get a completely different feeling when you view the original aloof Mona Lisa versus the copied “chill” Mona Lisa with her Starbucks and iPhone.

Applying this idea to your prom pictures, the yearbook picture probably sufficiently transforms your Instagram pictures for this factor to weigh in favor of fair use. Students post their pictures to share experiences with family and friends, brag about their lives, and show off their beautiful prom dresses. You don’t really get that same feeling when you view that picture in the yearbook—the pictures in the yearbook are to memorialize the year and show off the students at prom. Also, the yearbook used the pictures for an educational purpose, which is different from the purpose of the original pictures posted on social media. Therefore, the yearbook’s use of your Instagram photos would likely be transformative enough to satisfy fair use.

Factor two: For the second factor, courts look at how creative the original work is. The more creative it is, the more protection the work will receive. Photographs are considered highly creative because they involve many decisions. These decisions include what angle to take the photograph from, what lighting to use, and how to time the photo. Think about it—there are hundreds of photographers taking photos at large events featuring celebrities, like the Grammys. But, each photographer is going to get their own unique photo even though they’re all photographing the same subject. The photographer who gets the shot of Taylor Swift looking directly into the camera is going to have a much different picture than the photographer who got the side profile of Taylor Swift even if they capture their photographs at the exact same time. 

In your situation, your prom photographs would receive high copyright protection. Like the photographers at the Grammys, even if there is a line of mothers all taking pictures at the same time of the same subject, they’re all going to capture a different picture. Your prom pictures are unique from your friend’s pictures even if you’re standing next to each other. Thus, this factor will weigh in favor of copyright infringement rather than fair use.

Factor three: The third factor analyzes how much of the original work was used in the second work. A court will look at this factor both quantitatively (what percentage of the first work did the second work use) and qualitatively (whether the “heart and essence” was taken from the original work). Let’s go back to our Mona Lisa example to figure out what this means. Remember how the second Mona Lisa was the exact same as the original except the second work pictured her holding an iPhone and a Starbucks cup? Well, quantitatively, the second work took 100% of the original work, but added something new. However, qualitatively, the second work probably did not take the heart and essence of the original work. The original Mona Lisa is somber and serious, where the second work is silly and modern. Because the second Mona Lisa did not take the heart and essence of the original Mona Lisa, a court would likely lean in favor of fair use for this factor in that example.

Looking at your prom pictures, we first have to determine how much of the original picture was used. This would affect the quantitative analysis of this factor. If the yearbook cropped your pictures and only used a portion of them, then that leans more in favor of fair use. But, if the yearbook used 100% of your pictures, then that leans more in favor of copyright infringement. Although I haven’t seen your Instagram pictures compared to the yearbook pictures, I would guess the yearbook used most, if not all, of your pictures. Quantitatively, the yearbook probably took a lot of your pictures. Moreover, qualitatively, the yearbook probably took the heart and the essence of your photos. You are showcasing your photos for your followers to show off your dress and appearance, and you also want to document your prom experience. The yearbook is likely doing the same thing. They want to feature you specifically because you won prom queen, so they want to document your experience in the yearbook. Because the yearbook used most of your photos quantitatively and qualitatively, it would seem that this would lean in your favor for copyright infringement instead of fair use, BUT that isn't true as long as you change the message and meaning of the picture.

Factor four: Finally, the fourth factor focuses on the economics of the issue—whether the second work will impact the market of the first work. Will the second work cause consumers not to purchase the original work and purchase the second work instead? The more the second work affects the market of the first work, the more likely a court will find copyright infringement. For example, what if one year after the Mona Lisa was released, a copycat artist started releasing knockoff almost identical paintings? In that case, those knockoff paintings would probably impact the market of the original Mona Lisa because consumers may choose to purchase the knockoffs instead of the original, which may cause a court to lean in favor of copyright infringement.

Applying this factor to your prom pictures, the use of your photographs in a school yearbook would likely not have an impact on the market for the original photographs. Only students from your specific high school would purchase the yearbook. This would be a very limited market and would be unlikely to impact the market of the original photographs. Not to mention, your original photographs probably do not have much of a market in the first place. Even though you are prom queen, we highly doubt someone would want to purchase your Instagram pictures. So this factor would also lean in favor of fair use.

Looking at all these factors, factors one and four lean in favor of the yearbook and fair use. Factors two and three lean in favor of your copyright infringement argument. So, you’re probably thinking: the factors are split 50/50; why don’t I have a good claim? The thing is, the first factor is the most important and it weighs much more than the other three factors. Whatever party wins the first factor is probably going to win overall. Because the first factor in this situation weighs in favor of the yearbook staff and fair use, you likely do not have a very good copyright infringement claim.

Although you probably don’t have a good copyright infringement claim, the yearbook should have at least given you photo credit.

We totally see why you would be upset that the yearbook staff did not get permission from you before using your pictures. We mean after all, they are your Instagram posts. The yearbook staff should have at least informed you that they were going to use your post and given you credit for it as well. We’re guessing you wouldn’t have had a problem if they had listed your name and Instagram username below the picture.

It is also important to note the difference between a public and a private account. Courts have found that information a person knowingly exposes to the public, Instagram photos from a public account, are not subject to privacy protections. Check out this Q&A that talks about this distinction a bit more. 

Yearbook staff and journalists—this is a PSA to you. Even though you may not get in legal trouble or in trouble by your school for using your fellow students’ social media pictures in your publications, just get permission. That way, you won’t burn bridges, and you’ll maintain professional, positive relationships with your peers. Also, offer to give them photo credit. In fact, they’ll probably appreciate the clout when their photos are featured in a publication. The moral of the story is to always ask permission and to give credit when credit is due.